Parenting disputes in Canada are decided on one overriding standard: the best interests of the child. Everything else — schedules, decision-making, disagreements between parents — is measured against that standard. In 2021, reforms to the Divorce Act also changed the vocabulary used to describe parenting, in a deliberate effort to move the focus away from parents "winning" and toward the child's needs.
New language, same focus
The words "custody" and "access" were replaced in the Divorce Act with "decision-making responsibility" and "parenting time." The change is more than cosmetic. "Custody" had come to sound like ownership or a prize; the new terms describe functions — who makes major decisions for the child, and when the child is in each parent's care. Ontario's own legislation for unmarried parents uses similar child-focused concepts.
Decision-making responsibility
This covers significant decisions about a child's life — health, education, religion or spirituality, and major extracurricular activities. It can be allocated to one parent, shared between both, or divided by subject area. Day-to-day decisions are usually made by whichever parent has the child at the time.
Parenting time
This is the time a child spends in the care of each parent, including the responsibility for the child during that time. Schedules vary widely, from near-equal arrangements to a primary residence with the other parent, depending on what serves the particular child.
Best-interests factors
Courts weigh a broad range of factors, including:
- The child's needs given their age and stage of development, and the need for stability.
- The nature and strength of the child's relationship with each parent, siblings, grandparents, and other important people.
- Each parent's willingness to support the child's relationship with the other parent.
- The history of care of the child.
- The child's own views and preferences, given appropriate weight for age and maturity.
- The child's cultural, linguistic, religious, and heritage background, including Indigenous heritage.
- Any history of family violence and its effect on parenting and on the safety of the child and others.
The law is also explicit that a parent's past conduct is relevant only insofar as it affects their ability to parent. And the "maximum contact" idea of older law is now framed as parenting time consistent with the child's best interests — not contact for its own sake.
How this plays out
Because best interests is decided on the whole picture, there is no formula and no presumption of equal time. Two families with similar schedules can end up with different arrangements because the children, relationships, and histories differ.
For education only. Best interests is decided on all of the facts, and the applicable statute depends on whether the parents were married.
This article is general information for educational purposes only and is not legal advice. For advice on your situation, book a consultation.